Arbili v Arbili

The decision by the Court of Appeal in Arbili v Arbili, handed down today (22 May 2015), has again brought to the fore the issue of spouses obtaining documents by wrongful means in the context of divorce proceedings.

In this case, following the conclusion of the financial remedies hearing, the husband instructed an enquiry agent who acquired various documents from the wife illegally by hacking into her computer account. The husband said that these documents demonstrated that the wife had failed to make full disclosure and had not told the truth in the proceedings. He therefore sought to set aside the financial order, which provided for a 54% division of the assets in the case in the wife's favour, on the basis of the wife's non disclosure.

Harriet Errington, a solicitor in the Family Team at Boodle Hatfield said: "This case highlights a difficulty which arises so frequently in divorce and financial remedy cases; if one spouse discovers that the other spouse has failed to tell the truth through obtaining documents unlawfully, for example by breaking into a filing cabinet or hacking an email account, the obligation is to return the documents immediately to the other spouse, without retaining copies.

"In this case the wife's response after the documents had been returned to her was to provide a statement dealing with the contents of those documents. Although the husband responded alleging that statement was inaccurate, he failed to describe what he alleged he had seen in the documents which contradicted the wife's statement."

The Court of Appeal held in favour of the wife, concluding that the way in which the documents had been obtained by the husband, his failure to explain how he came upon them and also their lack of relevance to the case in general meant that the documents were not admissible and the original order should not be set aside.

Harriet adds: "Many argue that the law is unsatisfactory as there is little to be done in cases where a spouse believes the other is not making proper disclosure. There are limited remedies, such as search orders and freezing injunctions; however generally evidence will be required as to why the spouse feels assets are not being disclosed, which may be very difficult to provide."